Hemos recibo numerosos mensajes solicitando información sobre el marco legal del «Cannabis» en España, que aun teniendo una regulación muy imprecisa, confusa e incluso en algunos aspectos inexistente, si podemos decir:

Actualmente La Ley que prohíbe la comercialización de cualquier producto derivado del cannabis para fumar, independientemente de su contenido en THC, es la ley 17/1967 de 8 de abril por la que se regula en España la Convención Única de 1961 de la Naciones Unidas, firmada y ratificada por España,  enmendada por el Protocolo de 1972.

¿QUIEN TE PUEDE LEVANTAR UN ACTA EN TU ESTANCO ?

La responsabilidad del control recae sobre sobre el Ministerio de Sanidad, que tiene transferidas las competencias en las Comunidades Autónomas. Para su control y seguimiento se apoyan en las fuerzas y cuerpos del estado, como agentes de la autoridad, bien sean:

  • Policías Locales
  • Policías Nacionales
  • Mossos d’Escuadra
  • Ertzaintza
  • Guardia Civil
  • Vigilancia Aduanera
  • Inspectores del CMT

Según el artículo 52 de la Ley Orgánica 4/2015, de 30 de marzo, de Protección de la Seguridad Ciudadana.

COMENTARIOS MÁS HABITUALES QUE OS ENCONTRÁIS EN EL ESTANCO

Me indican que lo puedo vender como cáñamo, cuyo fin es la aroma-terapia o como coleccionable, que esto no está penalizado y luego nos encontramos que los formatos en los que actualmente se venden son presentados en envases con cigarrillos ya liados o en forma de cogollos.

Otra información que trasladan los comerciales sobre la venta de este tipo de productos, es que si el THC (Tetrahidrocannabinol) que contiene no supera los 0,2% si se puede vender. Otra frase habitual de venta en el mercado, es que si “El cannabidiol no es adictivo ni nocivo para la salud” se puede comercializar como que ya lo señaló un Comité Expertos en Drogodependencia de la OMS en diciembre del 2017.

A continuación, mostramos como está actuando la administración

EN QUE DOCTRINAS SE SUSTENTA ACTUALMENTE LA JUSTICIA

El Tribunal Supremo entiende que el principio activo (THC) no determina en absoluto la pureza de la droga, sino simplemente su modo de presentación. Esta doctrina jurisprudencial se puede apreciar en numerosas sentencias de la Sala Penal del Tribunal Supremo, por ejemplo en la de 28 de diciembre de 1990 o en la de 3 de diciembre de 2002.

El Comisionado del Mercado para el Tabaco, NO autoriza  la venta y comercialización en las Expenderías de Tabaco y Timbre del Estado, según se puede apreciar en su  circular  3/2020 de 27 Noviembre.

Por tanto, cualquier estanquero como empresario «libre» que quiera vender este tipo de productos en su establecimiento, debería  conocer el riesgo que ello comporta en la situación actual que nos encontramos con una regulación imprecisa o cuanto menos confusa, por las sentencias que se están publicando.

En la actualidad si tienes una inspección y te levantan un acta, se tipificará como infracción administrativa grave (si la cantidad incautada es pequeña), tipificada en el artículo 36.16 de la Ley Orgánica 4/2015 de 30 de marzo.

Esta infracción será sancionada con una multa pecuniaria de hasta 30.000 €, pudiendo pasar a 600.000 € si la consideran muy grave, conforme al artículo 39 de la citada Ley.

Según fuentes jurídicas consultadas, de forma muy excepcional,  podrían establecer la suspensión temporal de la licencias, autorizaciones o permisos desde 6 meses a 2 años, en virtud del mismo artículo 39 de la Ley Orgánica 4/2015.

 

¿ PORQUE AÚN HAY DUDAS SOBRE LA VENTA DE ESTE TIPO DE PRODUCTO ?

Se están publicando sentencias en torno al cultivo, consumo, circulación de mercancías y otras del cannabidiol (CBD), siendo la más reciente la del Tribunal de Justicia de la Unión Europea (pinche aquí para descargarsela), que indican que un estado miembro no podrá prohibir la comercialización del cannabidiol, producido legalmente en un estado miembro.

No obstante esta prohibición puede estar justificada por un objetivo de protección de la salud, según indica la misma sentencia, lo que deja aún más dudas.

El pasado 19 de octubre el partido político Más País, presentó en el Congreso de los Diputados, la propuesta para regular de forma integral el cannabis y convertirse en ley, pero fue rechazado, según publicamos en estanco al día.

Según fuentes jurídicas consultadas, la regulación y adaptación de este tipo de sentencias Europeas serán implementadas en los estados miembros, lo que no se sabe es el cuando y el cómo, por tanto, no queda otra que esperar.

Desde Estanco al Día entendemos que la red de expendedurías es la apropiada para la venta de este producto por lo que deseamos una rápida regulación.

 

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